AMERITECH MICHIGAN v. MICHIGAN PUBLIC SERVICE COMMISSION, et al.

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AMERITECH MICHIGAN v.
MICHIGAN PUBLIC SERVICE COMMISSION, et al.

In the Matter of The Complaint Of MCI Telecommunications
Corporation Against Ameritech Michigan And GTE North Incorporated
Relative To Their Not Making IntraLATA Equal Access Available To
MCI In The State Of Michigan.

May 19, 1998
No. 198706

AMERITECH MICHIGAN,

Appellant,

v

Public Service Commission

PSC No. U-10138

MICHIGAN PUBLIC SERVICE COMMISSION,
ATTORNEY GENERAL OF THE STATE OF
MICHIGAN, MCI TELECOMMUNICATIONS
CORPORATION, and AT&T COMMUNICATIONS
OF MICHIGAN, INC.,

In docket number 198706 of this consolidated appeal, Ameritech
Michigan appeals as of right an October, 1996, order of the
Michigan Public Service Commission that denied Ameritech’s
petition for the rehearing of a June, 1996, PSC order. In docket
number 199383, Ameritech appeals as of right a November, 1996,
circuit court order issuing a writ of mandamus. In both appeals,
the PSC, the Attorney General, MCI Telecommunications Corporation
and AT&T Communications of Michigan, Inc., respond as
appellees. We reverse.

I

This case concerns whether Ameritech is required to provide
"intraLATA toll dialing parity" in the absence of
"interLATA relief."

Before 1982, American Telephone and Telegraph Company, a
provider of both local and long distance telephone service,
dominated the telecommunications industry.[1]The
key to AT&T Company’s domination was its control of local
telephone service.[2]AT&T Company provided local
telephone service through its numerous Bell operating companies,
one of which was Michigan Bell Telephone Company,[3]now doing business as
Ameritech.

In 1982, AT&T Company agreed to the entry of a consent
decree entitled "Modification of Final Judgment" in
federal court (the AT&T consent decree). See, generally, United
States v American Telephone & Telegraph Co, 552 F Supp
131 (D DC, 1982). For the purpose of ending AT&T Company’s
monopoly over local telephone service, the AT&T consent
decree provided that AT&T Company would divest itself of its
Bell operating companies.[4]The AT&T consent decree
provided that the Bell operating companies would be authorized to
provide telephone service only within certain defined geographic
regions generally corresponding to telephone area code regions
called "local access transport areas"[5](LATAs).[6]This
service, called intraLATA service, includes local calls, i.e.,
typically telephone calls within a city or town, as well as toll
calls, i.e., calls covering a distance beyond local calls but
within the same LATA (intraLATA toll calls).[7]However,
the AT&T consent decree provided that the Bell operating
companies were prohibited from providing interLATA service, i.e.,
telephone service between LATAs.[8]The AT&T consent decree
further provided that the interLATA prohibition could be removed
when a Bell operating company showed that there was no
substantial possibility that it could use its monopoly power to
impede competition in the market it sought to enter.[9]As a result, at least in part,
of the AT&T consent decree, during the 1980s in Michigan a
customer’s intraLATA toll calls were carried by a local carrier
such as Ameritech while a customer’s interLATA calls were carried
by an interexchange (long distance) carrier such as AT&T of
Michigan or MCI.[10]

In the late 1980s, the PSC authorized AT&T of Michigan and
MCI to begin competing in the Michigan intraLATA toll market.[11]However, in order for an
interexchange carrier such as AT&T of Michigan or MCI to
provide service for a customer’s intraLATA toll call, the
customer must dial a five-digit "10xxx" prefix to the
number to be called, with the "xxx" being a three-digit
identification code assigned to each interexchange carrier.[12] The
PSC allowed local carriers such as Ameritech to retain the use of
what is termed "1+" or "0+" dialing, meaning
that Ameritech provides service for a customer’s intraLATA toll
call when the customer adds only a single digit prefix (either a
"1" or "0") to the number to be called.[13]

These dialing arrangements are the root of this case. MCI and
AT&T of Michigan do not like these dialing arrangements for
intraLATA toll calls because they believe "1+" and
"0+" dialing gives Ameritech a substantial competitive
advantage in the intraLATA toll market. MCI and AT&T of
Michigan want "intraLATA toll dialing parity," i.e.,
"uniform 1+ dialing arrangements for all intraLATA service
by all providers . . . ."[14]
However, Ameritech’s position has always been that it should not
be required to provide intraLATA toll dialing parity until it has
been accorded "interLATA relief," i.e., the authority
to compete in the interLATA market.

In July, 1992, MCI commenced this proceeding in the PSC,
U-10138, by filing a complaint alleging, in part, that Ameritech
was violating various provisions of the Michigan
Telecommunications Act, 1991 PA 179, MCL 484.2101 et seq.;
MSA 22.1469(101) et seq. (Act 179 or the MTA), by failing
to make intraLATA toll dialing parity available to MCI.[15] At
some point, the Attorney General and AT&T of Michigan
intervened in this proceeding. Although finding that Ameritech’s
failure to provide intraLATA toll dialing parity did not violate
Act 179, the PSC ultimately determined that implementation of
intraLATA toll dialing parity was in the public interest and, in
a February, 1994, decision, ordered Ameritech to implement
intraLATA toll dialing parity in Michigan "no later than
January 1, 1996."[16]
The decision also provided that a task force would be established
to work out the procedures for implementing intraLATA toll
dialing parity.[17]
Ameritech moved for rehearing and reconsideration, which was
denied by the PSC in a July, 1994, decision.[18]

After the task force submitted a report to the PSC containing
certain recommendations and noting certain disputed issues, the
PSC issued a March, 1995, decision in which it ordered Ameritech
to begin implementing intraLATA toll dialing parity on January 1,
1996, in those offices in which it was technically possible to do
so and to adopt a firm schedule for converting to intraLATA toll
dialing parity for those offices in which it was not technically
possible to do so by January 1, 1996. The decision also provided
that a fifty-five percent discount on access charges would be
imposed on those offices that did not meet the schedule for
converting to intraLATA toll dialing parity. Access charges are
apparently paid by an interexchange carrier such as AT&T of
Michigan and MCI to a local carrier such as Ameritech for the
interexchange carrier’s use of the local carrier’s local network
during the initial and final link of an intraLATA toll call
serviced by the interexchange carrier. In imposing the discount,
the PSC rejected the contention that the discount was a penalty.
The PSC reasoned that the discount was warranted because
nonconverted access services whereby customers would have to
continue to dial five-digit access codes plus the number to be
called in order for an interexchange carrier to service an
intraLATA toll call were of lesser quality than converted access
services whereby an interexchange carrier would service the call
simply when customers dialed a one-digit prefix plus the number
to be called.[19]

Effective November 30, 1995, the Legislature enacted 1995 PA
216, MCL 484.2101 et seq.; MSA 22.1469(101) et seq.
(Act 216 or the MTA), which substantially amended and added
several new sections to the MTA. In particular, Act 216 added §
312a[20]
and § 312b,[21]
both of which specifically addressed[22] the implementation of
intraLATA toll dialing parity in Michigan:

Sec. 312a. Effective January 1, 1996, if a waiver to the
inter-LATA prohibitions has been granted for a specific service
area and the service area has 2 or more providers of local
exchange service, the provider of basic local exchange service
shall provide 1 + intra-LATA toll dialing parity within the
service area that is subject to the waiver.

Sec. 312b. (1) Except as otherwise provided in subsection (2)
or (3), a provider of basic local exchange service shall provide
1 + intra-LATA toll dialing parity and shall provide inter-LATA
toll service to an equal percentage of customers within the same
service exchange on the following dates:

(a) To 10% of the customers by January 1, 1996.

(b) To 20% of the customers by February 1, 1996.

(c) To 30% of the customers by March 1, 1996.

(d) To 40% of the customers by April 1, 1996.

(e) To 50% percent of the customers by May 1, 1996.

(2) If the inter-LATA prohibitions are removed, the
commission, shall immediately order the providers of basic local
exchange service to provide 1 + intra-LATA toll dialing parity.

(3) Except for subsection (1)(a), subsection (1) does not
apply to the extent that a provider is prohibited by law from
providing either 1 + intra-LATA toll dialing parity or inter-LATA
toll service as provided under subsection (1).

(4) Except as otherwise provided by this section, this section
does not alter or void any orders of the commission regarding 1 +
intra-LATA toll dialing parity issued on or before June 1, 1995.

(5) The commission shall immediately take the necessary
actions to receive the federal waivers needed to implement this
section.

(6) This section does not apply to a provider of basic local
exchange service with less than 250,000 access lines.

Section 312a was enacted with a repeal date of January 1,
2001,[23]
while § 312b was enacted with a repeal date of July 1, 1997.[24] The
Legislature defined the statutory phrase "inter-LATA
prohibitions" in relevant part to mean "the
prohibitions on the offering of . . . inter-LATA service
contained in the modification of final judgment entered pursuant
to [the AT&T consent decree]."[25]

In response to the enactment of § 312b, Ameritech provided
intraLATA toll dialing parity to only ten percent of its
customers after January 1, 1996.

On February 8, 1996, Congress enacted § 271 of the Federal
Telecommunications Act of 1996 (the FTA), 47 USC 271, which
addresses a Bell operating company’s implementation of intraLATA
toll dialing parity and entry into the interLATA market in the
following relevant respects:

(a) General limitation. Neither a Bell operating company, nor
any affiliate of a Bell operating company, may provide interLATA
services except as provided in this section.

* * *

(e) Limitations.

* * *

(2) IntraLATA toll dialing parity.

(A) Provision required. A Bell operating company granted
authority to provide interLATA services . . . shall provide
intraLATA toll dialing parity throughout that State coincident
with its exercise of that authority.

(B). Limitation. Except for single-LATA States and States that
have issued an order by December 19, 1995, requiring a Bell
operating company to implement intraLATA toll dialing parity, a
State may not require a Bell operating company to implement
intraLATA toll dialing parity in that State before a Bell
operating company has been granted authority under this section
to provide interLATA services originating in that State or before
3 years after February 8, 1996, whichever is earlier. Nothing in
this subparagraph precludes a State from issuing an order
requiring intraLATA toll dialing parity in that State prior to
either such date so long as such order does not take effect until
after the earlier of either such dates.

(f) Exception for previously authorized activities. Neither
subsection (a) of this section nor section 273 of this title
shall prohibit a Bell operating company or affiliate from
engaging, at any time after February 8, 1996, in any activity to
the extent authorized by, and subject to the terms and conditions
contained in, an order entered by the United States District
Court for the District of Columbia pursuant to section VII or
VIII(C) of the AT&T consent decree if such order was entered
on or before February 8, 1996, to the extent such order is not
reversed or vacated on appeal. Nothing in this subsection shall
be construed to limit, or to impose terms or conditions on, an
activity in which a Bell operating company is otherwise
authorized to engage under any other provision of this section.

The term "Bell operating company" is defined to
include Michigan Bell Telephone Company. 47 USC 153(4). The term
"AT&T consent decree" in § 271(f) is defined as an
order entered pursuant to the decree entered in AT&T Co,
supra. 47 USC 153(3). The phrase "[e]xcept for
single-LATA States and States that have issued an order by
December 19, 1995, requiring a Bell operating company to
implement intraLATA toll dialing parity" in § 271(e)(2)(B)
is known as the "Breaux-Leahy Amendment." Bell
Atlantic-New Jersey, Inc v Tate, 962 F Supp 608, 613 (D NJ,
1997). The amendment was designed to avoid the generally
preemptive effect of § 271(e)(2)(B) and allow states such as
Michigan that had ordered intraLATA toll dialing parity by
December 19, 1995, to proceed to effectuate that requirement
after that date. Id.; see also 141 Congressional Rec, S
8349 (daily ed, June 14, 1995) (statement of Senator Leahy). The
amendment has also been referred to as a "grandfather
clause." Bell Atlantic, supra.

In May, 1996, MCI and AT&T of Michigan moved the PSC to
compel Ameritech to comply with the PSC’s previous orders
concerning full implementation of intraLATA toll dialing parity.
Relying on § 312b(4)’s language that "this section does not
alter or void any orders of the commission regarding 1 +
intra-LATA toll dialing parity issued on or before June 1,
1995," MCI and AT&T of Michigan reasoned that the
expiration of the January 1 to May 1, 1996, statutory phase-in
schedule contained in § 312b(1) meant that the PSC’s 1994 and
March, 1995, orders were once again fully effective and that the
time frames for implementing intraLATA dialing parity set forth
in those orders must now be met.

In response, Ameritech contended that § 312b constituted a
statutory plan linking intraLATA toll dialing parity with
interLATA relief. Ameritech cited § 312b(3) for the proposition
that "unless and until" it was allowed to provide
interLATA service, it was statutorily obligated to provide
intraLATA toll dialing parity to only ten percent of its
customers.

In a June, 1996, decision, the PSC ordered that within thirty
days Ameritech was required to provide intraLATA toll dialing
parity and implement the fifty-five percent discount on access
charges pursuant to the PSC’s 1994 and March, 1995, orders. The
PSC rejected Ameritech’s contention that § 312b was intended to
link intraLATA toll dialing parity with interLATA relief. The PSC
accepted MCI’s and AT&T of Michigan’s contention that § 312b
was intended to provide only a partial and temporary reprieve
from the PSC’s conversion schedule. In so ruling, the PSC
reasoned that § 312b was ambiguous. The PSC resolved the
perceived ambiguity by considering the language of § 312b, its
legislative history and its practical effect.

With respect to the language of § 312b, the PSC noted that
had the Legislature intended to link intraLATA toll dialing
parity with interLATA relief, then it could have done so in
either of two ways. First, the PSC noted that the absence of the
operative phrase relied on by Ameritech ("unless and
until") cast serious doubt on Ameritech’s claim that the
Legislature intended to indefinitely suspend the dialing parity
conversion schedule once conversion reached ten percent. Second,
the PSC noted that

the phrase "no more than" could have been inserted
before each of the numerical percentages found in subsections
(1)(a) through (1)(e) of Section 312B, thus clearly expressing
that the maximum scope of dialing parity that Ameritech Michigan
could be required to provide (at least until all federal
prohibitions on providing interLATA toll service are lifted) was
50%. However, neither that nor any similar phrase was included in
the Act. Therefore, the language in Section 312b(1), when given
its plain meaning, appears to set a minimum, rather than a
maximum, pace for Ameritech Michigan’s conversion to dialing
parity. This conflicts with Ameritech’s interpretation of the
Act.

The PSC also noted that July 1, 1997, expiration of § 312b
simply removed any doubt that one-hundred percent intraLATA toll
dialing parity was consistent with the Legislature’s intent.

The PSC also found that the legislative history of § 312b did
not support Ameritech’s argument that the Legislature intended to
link intraLATA toll dialing parity with interLATA relief. In so
finding, the PSC quoted part of an early Senate version of §
312a:

Until the inter-LATA prohibitions are removed for providers of
basic local exchange service, a provider of basic local exchange
service is not required to provide 1 + intra-LATA toll dialing
parity. If the inter-LATA prohibitions are removed, then a
provider of basic local exchange service shall offer to other
providers 1 + intra-LATA toll dialing parity. [SB 722, as passed
by the Senate on October 26, 1995.]

The PSC found that the Legislature’s failure to ultimately
enact this language as part of § 312a and § 312b meant that the
Legislature did not intend to absolutely link intraLATA dialing
parity with interLATA relief. The PSC also noted that

[a]s initially written, Section 312b(4) retained the
effectiveness of all Commission orders regarding dialing parity
issued before June 30, 1995. See House Public Utility Committee
substitute, H-1, to Senate Bill No. 722; 1995 Journal of the
House 2651 (No. 82, November 7, 1995). However, that date was in
conflict with the June 1, 1995 cut-off being considered by
Congress in legislation that eventually became the federal
Telecommunications Act of 1996. This created the possibility that
the Commission’s orders concerning dialing parity might not be
considered "grandfathered" and that Michigan, like a
majority of the states, would be precluded for up to three years
from requiring Ameritech Michigan to implement dialing parity
unless the company first received authority to provide interLATA
toll service.

To avoid that result, the language of Section 312b(4) was
amended by replacing "June 30, 1995" with "June 1,
1995." Id. at 2654. In making that change, the
Legislature ensured (1) that the removal of interLATA
prohibitions would not become a condition precedent to requiring
Ameritech Michigan to provide intraLATA dialing parity, and (2)
that prior Commission orders requiring the comprehensive
implementation of dialing parity would not be overturned by the
new federal law. The legislative history of Section 312b(4) thus
supports the construction advocated by MCI and AT&T . . . .

Finally, the PSC noted that implementation of intraLATA
dialing parity was in the public interest and that Ameritech’s
construction of § 312b conflicted with the MTA’s goals of
encouraging competition and new providers.[26]

Ameritech moved for rehearing. In an October, 1996, decision,
the PSC denied rehearing and ordered Ameritech to immediately
provide intraLATA toll dialing parity and implement the
fifty-five percent discount on access charges in unconverted
offices in accordance with the PSC’s 1994, March, 1995, and June,
1996, orders.

In November, 1996, Ameritech timely filed with this Court a
claim of appeal from the PSC’s October, 1996 order (docket number
198706). That same day, AT&T of Michigan and MCI filed a
complaint against Ameritech in circuit court, seeking a writ of
mandamus compelling Ameritech to comply with the PSC’s toll
dialing parity orders. Following oral argument but without
considering the statutory language of § 312b or otherwise making
any findings of fact or conclusions of law, the circuit court
issued an order directing that the requested writ of mandamus be
issued. The order directed Ameritech to comply with the PSC’s
intraLATA toll dialing parity orders in "conformance with
the implementation schedule ordered by the Commission."
Ameritech then timely filed a claim of appeal in this Court from
the circuit court’s order (docket number 199383). In December,
1996, this Court entered a stay of further proceedings in docket
number 198706 (Ameritech’s appeal of the PSC’s October, 1996,
order) "pending resolution of this appeal or further order
of this Court."[27]
In January, 1997, this Court consolidated Ameritech’s appeals.

II

Ameritech contends that this Court must reverse the PSC’s 1996
orders requiring full implementation of intraLATA toll dialing
parity.[28]

Ameritech bears the burden of proving by clear and
satisfactory evidence that the PSC’s decisions were unlawful or
unreasonable. MCL 462.26; MSA 22.45; MCL 484.2203(7); MSA
22.1469(203)(7); Attorney General v Michigan Public Service
Comm, 227 Mich App 148, 153; 575 NW2d 302 (1997); In re
Procedure And Format For Filing Tariffs Under The Michigan
Telecommunications Act, 210 Mich App 533, 538; 534 NW2d 194
(1995). A decision of the PSC is unlawful when it involves an
erroneous interpretation or application of law and unreasonable
when it is unsupported by the evidence. Consumers Power Co v
Public Service Comm, 226 Mich App 12, 21; 572 NW2d 222
(1997). Although statutory interpretation is a question of law
subject to review de novo, this Court ordinarily will defer to
the construction placed on statutory provisions by the
governmental agency charged with applying them unless the agency
interpretation is clearly wrong." Attorney General, supra.
However, an agency’s initial interpretation of new legislation is
not entitled to the same measure of deference that we would
accord a longstanding administrative interpretation. In re
Telecommunications Tariffs, supra. But, "[m]erely
establishing that another interpretation is plausible is not
sufficient to meet the burden of establishing by clear and
convincing evidence that the PSC’s interpretation of the statute
is unlawful or unreasonable." Attorney General, supra.

Ameritech again argues, as it did below, that in enacting §
312b the Legislature unambiguously intended to prohibit, at least
until July 1, 1997, the implementation of intraLATA toll dialing
parity for more than ten percent of customers to the extent that
Ameritech is prohibited by law from providing interLATA service.
Ameritech contends that, to this extent, § 312b nullified the
PSC’s 1994 and 1995 orders requiring full implementation of
intraLATA toll dialing parity. Ameritech argues that,
accordingly, as of the December 19, 1995, date of the grandfather
clause contained in § 271(e)(2)(B) of the FTA, there was no
longer a valid PSC order for full intraLATA toll dialing parity.
Ameritech contends that the PSC’s 1996 orders are new orders that
do not come with the grandfather clause contained in §
271(e)(2)(B) of the FTA. Ameritech argues that the PSC’s 1996
orders are, therefore, preempted under § 271(e)(2)(B) of the FTA
and must be reversed.

The PSC again contends that § 312b is ambiguous concerning
the time when full intraLATA toll dialing parity is required. The
PSC contends that it reasonably construed § 312b as providing a
temporary phase-in schedule that simply deferred until May 2,
1996, the PSC’s order requiring implementation of full intraLATA
toll dialing parity. The PSC contends that this Court should
defer to the PSC’s reasonable construction of § 312b. The PSC
argues that its 1994 and 1995 orders, as modified by § 312b, are
within the December 19, 1995, grandfather date contained in §
271(e)(2)(B) of the FTA. The PSC argues that its 1996 orders are
not preempted by § 271(e)(2)(B) because they are simply
ancillary orders requiring Ameritech to comply with its 1994 and
1995 orders. The Attorney General, MCI and AT&T of Michigan
essentially reiterate the PSC’s arguments.

A

We first consider the issue of statutory construction raised
by Ameritech.

The primary goal of statutory interpretation is to ascertain
and give effect to the Legislature’s intent. Smith v Globe
Life Ins Co, 223 Mich App 264, 276; 565 NW2d 877 (1997). The
first criterion in determining intent is the specific language of
the statute. House Speaker v State Administrative Bd, 441
Mich 547, 567; 495 NW2d 539 (1993). The Legislature is presumed
to have intended the meaning it plainly expressed. Smith,
supra. If the plain and ordinary meaning of the statutory
language is clear, then judicial construction is neither
necessary nor permitted. Id at 276-277. However, if
reasonable minds can differ with respect to the meaning of a
statute, judicial construction is appropriate. Heinz v Chicago
Rd Investment Co, 216 Mich App 289, 295; 549 NW2d 47 (1996).
"[S]tatutes that relate to the same subject matter should be
read, construed, and applied together to distill the
Legislature’s intention . . . ." Empire Iron Mining
Partnership v Orhanen, 455 Mich 410, 427; 565 NW2d 844
(1997). With these principles in mind, we turn to the plain
language of those sections of the MTA that relate to the subject
of intraLATA toll dialing parity, i.e., not only § 312b, but §
312a as well. We again set forth the text of these statutes
below:

Sec. 312a. Effective January 1, 1996, if a waiver to the
inter-LATA prohibitions has been granted for a specific service
area and the service area has 2 or more providers of local
exchange service, the provider of basic local exchange service
shall provide 1 + intra-LATA toll dialing parity within the
service area that is subject to the waiver.

Sec. 312b. (1) Except as otherwise provided in subsection (2)
of (3), a provider of basic local exchange service shall provide
1 + intra-LATA toll dialing parity and shall provide inter-LATA
toll service to an equal percentage of customers within the same
service exchange on the following dates:

(a) To 10% of the customers by January 1, 1996.

(b) To 20% of the customers by February 1, 1996.

(c) To 30% of the customers by March 1, 1996.

(d) To 40% of the customers by April 1, 1996.

(e) To 50% percent of the customers by May 1, 1996.

(2) If the inter-LATA prohibitions are removed, the
commission, shall immediately order the providers of basic local
exchange service to provide 1 + intra-LATA toll dialing parity.

(3) Except for subsection (1)(a), subsection (1) does not
apply to the extent that a provider is prohibited by law from
providing either 1 + intra-LATA toll dialing parity or inter-LATA
toll service as provided under subsection (1).

(4) Except as otherwise provided by this section, this section
does not alter or void any orders of the commission regarding 1 +
intra-LATA toll dialing parity issued on or before June 1, 1995.

(5) The commission shall immediately take the necessary
actions to receive the federal waivers needed to implement this
section.

(6) This section does not apply to a provider of basic local
exchange service with less than 250,000 access lines.

We also again note that the Legislature specifically defined
"inter-LATA prohibitions" to mean the prohibitions on
interLATA service contained in the AT&T consent decree.

When these sections are construed together, we do not find
that the plain language of § 312a and § 312b is ambiguous.
Specifically, under § 312a, a local carrier must provide
intraLATA toll dialing parity for a particular area "if a
waiver to the inter-LATA prohibitions [contained in the AT&T
consent decree] has been granted for a specific service area and
the service area has 2 or more providers of local exchange
service . . . ."

Under § 312b(1)(a) and (3), a local carrier has an
unconditional obligation to provide intraLATA toll dialing parity
and interLATA service[29]
to ten percent of customers by January 1, 1996. Under §
312b(1)(b)-(e) and (3), the carrier has a further obligation to
provide intraLATA toll dialing parity and interLATA service to
twenty percent of customers by February 1, 1996, thirty percent
of customers by March 1, 1996, forty percent of customers by
April 1, 1996, and finally fifty percent of customers by May 1,
1996, unless the provider is prohibited by law from providing
either intraLATA toll dialing parity or interLATA service in
accordance with this schedule. Finally, under § 312b(2), the PSC
shall immediately order a local provider to provide intraLATA
toll dialing parity once "the inter-LATA prohibitions
[contained in the AT&T consent decree] are removed . . .
."

Thus, we conclude from the plain language of these sections
that, except for ten percent of customers, the Legislature
intended that Ameritech provide intraLATA toll dialing parity
when the conditions specified in § 312a and § 312b–primarily
interLATA relief–were satisfied. Our conclusion in this regard
is bolstered by § 312b(5), which provides that the PSC
"shall immediately take the necessary actions to receive the
federal waivers needed to implement [§ 312b]."

The PSC has focused on the language of § 312b(4):

Except as otherwise provided by this section, this section
does not alter or void any orders of the commission regarding 1 +
intra-LATA toll dialing parity issued on or before June 1, 1995.

The PSC interprets § 312b(4) as affecting only the PSC’s
implementation schedule between January 1 and May 1, 1996, and
contends that its orders requiring full implementation of
intraLATA toll dialing parity orders were once again effective on
May 2, 1996. However, § 312b(4) does not provide "[e]xcept
as otherwise provided by subsection one" or "[e]xcept
as otherwise provided by the schedule set forth in subsection
one." Rather, § 312b(4) provides "[e]xcept as
otherwise provided by this section," this
"section" being § 312b in its entirety. As explained
above, under § 312b(1) and (3), Ameritech is required to provide
intraLATA toll dialing parity to no more than ten percent of
customers after January 1, 1996, so long as Ameritech is
prohibited by law from providing either intraLATA toll dialing
parity or interLATA service in accordance with the schedule set
forth in § 312b(1). Under § 312b(2), the PSC cannot order
Ameritech to provide intraLATA toll dialing parity until
"the inter-LATA prohibitions [contained in the AT&T
consent decree] are removed . . . ." We find the plain
language of § 312b(2) dispositive. In light of this language, we
further find unwarranted the PSC’s conclusion that its orders
requiring full intraLATA toll dialing parity somehow became
effective again on May 2, 1996, when the interLATA prohibitions
contained in the AT&T consent decree had not been removed.

The PSC also contends that the legislative history of § 312b
supports its interpretation of this section. In ascertaining
legislative intent, this Court may examine both the act’s
legislative history and journals chronicling this history. Jenks
v Brown, 219 Mich App 415, 418; 557 NW2d 114 (1996). In this
case, what eventually became Act 216 was introduced into the
Senate on October 5, 1995, as Senate Bill (SB) 722. As
introduced, SB 722 contained only § 312a. On October 26, 1995,
the Senate passed a substitute for SB 722, again containing only
§ 312a, which provided in full as follows:

Sec 312A. (1) Effective January 1, 1996, if a waiver to the
inter-LATA prohibitions has been granted for a specific service
area and the service area has 2 or more providers of local
exchange service, the provider of basic local exchange service
shall provide 1+intra-LATA toll dialing parity within the service
area that is subject to the waiver.

(2) Except as provided in subsection (1), until the
inter-LATA prohibitions are removed for providers of basic local
exchange service, a provider of basic local exchange service is
not required to provide 1+intra-LATA toll dialing parity. If the
inter-LATA prohibitions are removed, then a provider of basic
local exchange service shall offer to other providers
1+intra-LATA toll dialing parity.

(3) All orders of the commission providing for 1+intra-LATA
toll dialing parity issued before January 1, 1996, shall remain
in effect to the extent that they are not in conflict or
inconsistent with this section.

As indicated previously, the PSC has relied on the fact that
the Legislature did not ultimately enact the italicized language
as part of § 312a or § 312b as support for its contention that
the Legislature did not therefore intend to inextricably link
intraLATA dialing parity with interLATA relief.

However, after the Senate passed the substitute for SB 722 on
October 26, 1995, the Senate then sent this bill to the House,
which adopted a second substitute known as SB 722 (Substitute
H-1). A November 3, 1995, legislative analysis explains that SB
722 (Substitute H-1) would amend the MTA, in part, to
"[p]rovide for intra-LATA dial-1 parity under certain
conditions."[30]
This legislative analysis goes on to explain the conditions under
which SB 722 (Substitute H-1) would provide for intraLATA toll
dialing parity:

Currently, a federal consent decree dating from the breakup of
American Telephone and Telegraph Co. in the early 1980s prohibits
certain local exchange service providers from offering inter-LATA
toll service (long distance between local access and transport
areas). The bill would provide that if those prohibitions were
removed, the PSC would immediately order the providers of intra-LATA
toll service to provide dial-1 parity to other providers (Dial-1
parity refers to the ability to make a toll call without having
to dial an access code or extra digits if the caller chose a
telephone company other than the local exchange carriers.) The
bill would require the PSC to immediately take necessary actions
to seek a federal waiver to allow the bill’s dial-1 parity
provisions to take effect (i.e., petition the federal court to
lift the inter-LATA prohibitions).

The bill would provide for a phase-in of both intra-LATA
dialing parity and the provision of inter-LATA toll service by a
provider of basic local exchange service, by requiring those
services be provided to 10 percent of customers within the same
service exchange by January 1, 1996; to 20 percent by February 1,
1996; and so forth, so that by May 1, 1996, both would be in
place for up to 50 percent of customers within the same service
area. However, only the first step in the phase-in (10 percent by
January 1, 1996) would apply if the federal prohibitions were not
lifted or waived.

Further, effective January 1, 1996, if a waiver to the federal
inter-LATA prohibitions had been granted for a specific service
area where there were two or more providers of local service in
operation, a provider of local exchange service would be required
to provide dial-1 intra-LATA parity within that service area.

All orders of the PSC providing for intra-LATA dial-1 parity
issued before June 30, 1996, would remain in effect to the extent
that they were not in conflict or inconsistent with the bill’s
dial-1 parity provisions. Further, the intra-LATA dial-1 parity
provisions would not apply to providers of basic local exchange
service with less than 250,000 access lines.[31]

The November 3, 1995, legislative analysis explains that SB
722 (Substitute H-1) was a response to the PSC’s orders requiring
local carriers such as Ameritech to implement intraLATA toll
dialing parity by January 1, 1996:

In a related issue, some are concerned about the effect of a
PSC order which would institute "Dial-1 parity" on
January 1, 1996. "Dial-1 parity" would require that
customer’s be able to make a "short haul long distance
call" (a call which originates and terminates within the
same area code or LATA) without requiring the caller to dial a
five-digit access number in order to access his or her
long-distance company. The PSC order would require that a
customer be able to access his or her long-distance carrier of
choice for such calls simply by dialing 1 plus the phone number.
It is argued by some that implementing dial-1 parity without also
allowing local access companies, like Ameritech, to have access
to long-distance markets at the same time would be unfair.[32]

Finally, the November 3, 1995, analysis describes the
arguments for and against SB 722 (Substitute H-1), both of which
acknowledge that the bill links the provision of intra-LATA toll
dialing parity with interLATA relief:

ARGUMENTS:

For:

* * *

The bill would link dial-1 intra-LATA parity for
inter-exchange carriers, such as AT&T or MCI, with lifting of
the inter-LATA toll service prohibitions on local exchange
companies, like Ameritech or GTE. This would effectively negate
the PSC’s order to implement dial-1 parity on January 1, 1996.
Until federal inter-LATA restrictions are lifted, local phone
providers could maintain their advantage in the intra-LATA
market, thus ensuring a level playing field. Linkage of these
issues is imperative to protect Michigan companies and workers as
competition is phased in.

* * *

Against:

The bill would block the implementation of dial-1 parity for
intra-LATA telephone service which is scheduled for
implementation by the PSC on January 1, 1996. Illinois and
Wisconsin will both require that competition be introduced into
the intra-LATA toll market by 1996. Michigan, however, under the
bill, would set up a graduated implementation of dial-1 parity,
only 10 percent of which would be mandatory, until such time as
the Congress or the federal courts lift the prohibitions of a
federal consent degree [sic] entered by some of the local
exchange providers in the early 1980s.

There is no reason to allow the local exchange providers to
continue their virtual monopoly on intra-LATA toll service. The
local exchange providers do not need to have access to the long
distance market in order to allow competition to flourish in the
local market. The local exchange providers have all of the
equipment and technology necessary to allow them to enter the
long distance market as soon [sic] they are released from the
restrictions on the consent decree. On the other hand, current
long distance providers and others who wish to enter the local
market will be unable to do so without using the facilities owned
by the existing local exchange providers. This gives the current
local exchange providers a significant advantage should both
dial-1 parity and release from the consent decree occur at the
same time.

Response:

The bill would require that the implementation of dial-1
parity be linked to removal of the restrictions against the local
exchange providers which bar them from offering long distance
service to their customers. The restrictions on these local
exchange providers would prevent them from successfully competing
with other providers who would otherwise be able to offer
customers both long distance and local service as a package,
while the local exchange providers would be unable to offer long
distance service. Allowing the other companies to have a head
start would be unfair. Without linkage of dial-1 parity and
release from the federal restrictions on the provision of
inter-LATA toll service, new competitors in the local exchange
market could "cream-skim" the most lucrative customers
by offering a package of long-distance and local service, while
the larger current local providers would be bar [sic] from
offering a similar competitive package.

The bill’s provisions would also have the effect of forcing
the PSC to help to seek a waiver of the consent decree which
currently binds Ameritech. By involving the PSC, the bill will
hopefully help to speed the process of giving Ameritech the
opportunity to compete on equal footing with the other companies.[33]

On December 27, 1995, the Senate completed a summary SB 722,
as enrolled.[34]
The summary noted that SB 722, as enrolled, provided for
"intra-LATA ‘dial-1 parity’ under certain conditions." [35] The
summary summarized the intraLATA toll dialing parity provisions
found in SB 722, as enrolled, as follows:

The bill requires that, effective January 1, 1996, a provider
of basic local exchange service provide intra-LATA dial-1 parity
within the service areas, if a waiver to the inter-LATA
prohibitions is granted for a specific service area and the
service area has two or more providers of basic local exchange
service.

A provider of basic local exchange service must provide
intra-LATA dial-1 parity and provide inter-LATA toll service to
an equal percentage of customers within the same service exchange
on the following dates:

- To 10% of the customers by January 1, 1996.

- To 20% of the customers by February 1, 1996.

- To 30% of the customers by March 1, 1996.

- To 40% of the customers by April 1, 1996.

- To 50% of the customers by May 1, 1996.

Except for the 10% requirement on January 1, 1996, this
requirement does not apply to the extent that a provider is
prohibited by law from providing either intra-LATA dial-1 parity
or inter-LATA toll service.

If the inter-LATA prohibitions are removed, the PSC must
immediately order providers of basic local exchange service to
provide intra-LATA dial-1 parity.

The bill’s dial-1 parity provisions do not alter or void any
PSC orders regarding dial-1 parity issued on or before June 1,
1995, nor do they apply to a provider of basic local exchange
service with fewer than 250,000 access lines.[36]

Thus, contrary to the PSC’s contention, we believe that the
legislative history and analyses of § 312a and § 312b clearly
indicates that except for ten percent of customers, the
Legislature intended to link intraLATA toll dialing parity to
interLATA relief.

Finally, we note that in construing a statute, deference is
given to an administrative agency’s decision, provided that its
construction is consistent with the purpose and policies of the
statute itself. Empire Mining, supra at 416. In
this case, the PSC found that its construction of § 312b was
consistent with the policy of encouraging competition and new
providers embodied in the MTA.[37]
However, despite these general policies, the plain and specific
language of § 312a and § 312b embodies an express policy choice
indicating that, except for ten percent of customers, the
Legislature did not intend to encourage competition and new
providers in the intraLATA toll dialing market to the extent that
a local carrier is prohibited from providing interLATA service.
Thus, the PSC’s construction of § 312a and § 312b is
inconsistent with the policies actually embodied in those
sections.

In summary, we conclude that Ameritech has not simply
proffered a plausible interpretation of § 312a and § 312b. Attorney
General, supra. The plain language of and policies embodied
in § 312a and § 312b, as well as the legislative history of
these sections, clearly indicate that except for ten percent of
customers, the Legislature intended to link intraLATA toll
dialing parity with interLATA relief. Thus, we conclude that the
PSC’s interpretation of these sections is clearly wrong. Attorney
General, supra.

B

We next consider the effect of the February 8, 1996, enactment
of § 271 of the FTA on § 312a and § 312b.

Under § 271(a), a Bell operating company may provide
interLATA service only as provided in § 271. Under § 271(f),
post-February 8, 1996, federal court orders entered pursuant to
the AT&T consent decree that remove the interLATA
restrictions imposed on the Bell operating companies are
superseded by § 271(a). Under § 271(e)(2)(A), a Bell operating
company granted the authority to provide interLATA service under
§ 271 shall also provide intraLATA toll dialing parity. Finally,
under the general rule stated in § 271(e)(2)(B), a State may not
require a Bell operating company to implement intraLATA toll
dialing parity before the earlier of the time when the Bell
operating company is granted the authority under § 271 of the
FTA to provide interLATA service or February 8, 1999. However, in
order to avoid the preemptive effect of this general rule, §
271(e)(2)(B) also provides a grandfather clause containing two
exceptions whereby a state can order a Bell operating company to
implement intraLATA toll dialing parity before the times
otherwise specified in the general rule: "Except for
single-LATA States and States that have issued an order by
December 19, 1995, requiring a Bell operating company to
implement intraLATA toll dialing parity . . . ." See,
generally, 47 USC 271(a), (e)(2)(A) and (B), and (f); see also Bell
Atlantic, supra; 141 Congressional Rec, S 8348-49 (daily ed,
June 14, 1995).

In Bell Atlantic, the federal court construed the
grandfather clause. In that case, the New Jersey Board of Public
Utilities (BPU) issued an order on December 14, 1995, that
approved both intraLATA toll dialing parity and the publication
of proposed rules for the implementation of intraLATA toll
dialing parity. Id. at 611. The rules were eventually
adopted on August 5, 1996, including a rule providing that
intraLATA toll dialing parity would be implemented on May 5,
1997. Id. at 612. Plaintiff Bell Atlantic, a Bell
operating company, contended that the rule providing for
implementation of intraLATA toll dialing parity on May 5, 1997,
was preempted by § 271(e)(2)(B) of the FTA. Id. The BPU
contended that because its December 14, 1995, order was
"grandfathered" under § 271(e)(2)(B) of the FTA,
"it [§ 271 of the FTA] has no impact on the implementation
of that policy decision and these rules are thus unaffected by
any provision in the [FTA]." Id.

The federal district court agreed, ruling that "[g]iven
the plain meaning of the statute and the clear mandate of the BPU
Order, the BPU met the requirements of § 271(e)(2)(B) by issuing
its December 14, 1995 order. Therefore, the implementation date
of May 5, 1997, will not be disturbed by this Court." Id.
at 616. In so ruling, the federal court stated as follows:

Simply put, the grandfather clause allowed those states who
had initiated proceedings regarding [intraLATA toll dialing
parity] and had ordered that [intraLATA toll dialing parity]
would be implemented in that state to continue doing what they
started and to utilize their own timeframes.

* * *

More specific to this Court’s inquiry, grandfather provisions
which prevent preemption must not be given a narrow construction.

* * *

All the grandfather clause to the Act requires is that a state
determine whether it will proceed with [intraLATA toll dialing
parity] and publish an order to that effect prior to December 19,
1995.

* * *

There is a strong implication, then, that a state issuing an
order before the December 1995 date would be free to actively
implement [intraLATA toll dialing parity] at any time that
state’s public utility commission chooses. The issuance of the
order requiring [intraLATA toll dialing parity] must have
occurred before December 19, 1995, but the statute sets no
deadline for the implementation of that requirement after the
order has been issued.

* * *

It is clear that actual implementation of a program was not
required under the grandfather clause. The deadline was based
"on the states’ issuing the order, not the effective
date." [Id. at 613-615.]

Thus, Bell Atlantic makes clear that under the
grandfather clause a state may proceed to actually implement
intraLATA toll dialing parity after December 19, 1995, so long as
the state issued the order providing for intraLATA toll dialing
parity before December 19, 1995. In Bell Atlantic, the
order under consideration was a state administrative order. In
this case, we are considering § 312a and § 312b. The question
thus arises whether state statutes can constitute an
"order" under the grandfather clause. The word
"order" is undefined in § 271(e)(2)(B) of the FTA.
However, as explained in Marcelle v Taubman, 224 Mich App
215, 219; 568 NW2d 393 (1997):

[S]imply because a phrase is undefined does not render a
statute ambiguous. . . . Rather, undefined words are given
meaning as understood in common language, taking into
consideration the text and subject matter relative to which they
are employed. . . . Where a statute does not define one of its
terms, it is customary to look to a dictionary for a definition.

In considering the text and subject matter relative to which
"order" is employed, we note that § 271(e)(2)(B)
speaks in terms of "States that have issued an order . . .
." Black’s Law Dictionary (6th ed) defines order,
in part, as follows:

A mandate; precept; command or direction authoritatively
given; rule or regulation. . . . Direction of a court or judge
made or entered in writing, and not included in a judgment, which
determines some point or directs some step in the proceedings.
[Black's Law Dictionary (6th ed) (citation omitted).]

We conclude that § 312a and § 312b constitute state orders
for the purpose of the grandfather clause. Our conclusion in this
regard is confirmed by a June 14, 1995, Congressional Record
excerpt of a discussion by Senators Breaux, Graham and Leahy
concerning the grandfather clause.[38]
We note that at the time of this discussion, the version of the
grandfather clause under consideration provided for a June 1,
1996, cutoff date, rather than the enacted December 19, 1995
cutoff date:

MR. GRAHAM: I briefly had an opportunity to look at the
amendment. I asked for a copy to review it in more detail. Let me
ask a question from the perspective of my State. The recent
Florida legislature of this spring passed an interLATA dialing
parity bill. The legislation goes into effect on January 1, 1996.
What effect will this amendment have on my State’s ability to
adopt dialing parity?

MR. BREAUX: I will respond to the Senator by saying that we
have tried to take into consideration two types of States in our
amendment. The first would be about 10 States that are
single-LATA states, which means they only have one division of
what can happen in their States. That does not include Florida.
The second category includes Florida-except States which have
issued an order by June 1, 1996, requiring this dialing parity,
those States would be able to go forward with those orders, and
they would be able to implement those orders. . . . But the State
of Florida would be able to go forward with that order and
implement it. In essence, the State of Florida would be
grandfathered in because they are a State that already issued the
order at the State level.

MR. GRAHAM: Well, I am not certain if they have issued an
order or not. My information is that the legislation goes into
effect on January 1, 1996. I am not certain if that is the
threshold that brings a State into the category [sic] those which
will still be allowed to exercise some degree of State regulation
over dialing parity.

MR. BREAUX: My answer to the Senator from Florida is simply,
yes. The explanation is that it is based on the States issuing
the order, not the effective date. The State of Florida, for
instance, would have issued the order in a timely fashion in
order to be one the excepted States.

MR. LEAHY: If the Senator will yield, the Senator from
Louisiana is absolutely correct. Florida, having ordered it, even
though they have not implemented it, would be covered by the
Breaux-Leahy amendment and would be protected. [141 Congressional
Rec, S 8349 (daily ed, June 14, 1995).]

Thus, pursuant to § 312a and § 312b, Michigan issued an
order by December 19, 1995, providing for intraLATA toll dialing
parity. It is true that, except for ten percent of customers,
actual implementation of intraLATA toll dialing parity was linked
to interLATA relief. However, "all the grandfather clause .
. . requires is that a state determine whether it will proceed
with [intraLATA toll dialing parity] and publish an order to that
effect prior to December 19, 1995." Bell Atlantic, supra
at 614. The deadline is based "’on the states’ issuing the
order, not the effective date." Id. at 615 (quoting
141 Congressional Rec, § 8350 [daily ed, June 14, 1995]). Here,
in enacting § 312a and §312b, Michigan determined that it would
proceed with intraLATA toll dialing parity and published an order
to that effect before December 19, 1995. However, except for ten
percent of customers, Michigan made a policy choice that linked
the actual implementation of intraLATA toll dialing parity to
interLATA relief. Thus, we conclude that § 312a and § 312b are
within the grandfather clause because they constituted an
"order by December 19, 1995, requiring a Bell operating
company to implement intraLATA toll dialing parity."

C

The PSC’s 1994 and March, 1995, orders also constitute state
orders within the grandfather clause. Bell Atlantic, supra.
The PSC’s 1996 orders simply require Ameritech to comply with
these orders. Thus, we next consider the effect of § 312a and §
312b on the PSC’s 1994, March, 1995, and 1996 orders.

The PSC’s 1994 and March, 1995, orders provide for intraLATA
toll dialing parity. These orders further specify a schedule for
the time when Ameritech must implement intraLATA toll dialing
parity, i.e., on January 1, 1996, in those offices in which it
was technically possible to convert to intraLATA toll dialing
parity and thereafter pursuant to a firm conversion schedule for
those offices in which it was not technically possible to so
convert on January 1, 1996. However, effective November 30, 1995,
the Legislature enacted § 312a and § 312b. Like the PSC’s 1994
and March, 1995, orders, these statutes also provide for
intraLATA toll dialing parity. However, § 312a and § 312b
differ from the PSC’s 1994 and March, 1995, orders in that the
statutes provide a schedule different from that contained in the
PSC’s orders concerning when Ameritech is required to implement
intraLATA toll dialing parity in Michigan. "To the extent
that an administrative order conflicts with a statute, the order
is void." Manufacturers Nat’l Bank of Detroit v Dep’t of
Natural Resources, 420 Mich 128, 146; 362 NW2d 572 (1984);
see also MCL 484.312b(4); MSA 22.1469(312b)(4).

On the November 30, 1995, effective date of § 312a and §
312b, Ameritech was still prohibited by the AT&T consent
decree from providing interLATA service. Thus, under § 312b(1)
and (3), Ameritech was statutorily required to provide intraLATA
toll dialing parity to only ten percent of its customers after
January 1, 1996. Under § 312b(2), the PSC could not order
Ameritech to provide full intraLATA toll dialing parity until the
interLATA prohibitions contained in the AT&T consent decree
were removed. Moreover, under § 312a, Ameritech was not
statutorily required to provide full intraLATA toll dialing
parity for a particular service area unless a waiver to the
interLATA prohibitions contained in the AT&T consent decree
was granted and the service area had two or more local providers.
Thus, we conclude that after November 30, 1995, the PSC’s 1994
and March, 1995, orders were rendered void to the extent that the
intraLATA toll dialing parity implementation schedule contained
in those orders conflicted with and continues to conflict with
the statutory implementation schedules contained in § 312b,
repealed effective July 1, 1997, and § 312a. MCL 484.2312b(4);
MSA 22.1469(312b)(4); Manufacturers Bank, supra.

The PSC’s 1996 orders required Ameritech to comply with the
implementation schedule contained in the 1994 and March, 1995,
orders. Because we have determined that the PSC’s previously
ordered implementation schedule was rendered void because it
conflicted with and continues to conflict with § 312b, repealed
effective July 1, 1997, and § 312a, we conclude that the PSC’s
1996 implementation compliance orders were unlawful or
unreasonable. Attorney General, supra.

D

Ameritech also contends that this Court must reverse the PSC’s
imposition of a fifty-five percent discount on access charges. We
agree. In the 1996 orders, the PSC ordered that Ameritech
implement the fifty-five percent discount in those offices that
did not convert to intraLATA toll dialing parity pursuant to the
schedule set forth in the PSC’s 1994 and March, 1995, orders.
However, as previously explained, we have determined that the
intraLATA toll dialing parity implementation schedule contained
in the PSC’s 1994 and March, 1995, orders was rendered void to
the extent that this schedule conflicted and continues to
conflict with § 312b, repealed effective July 1, 1997, and §
312a. We have also determined that the PSC’s 1996 orders
requiring Ameritech to comply with the void implementation
schedule were unlawful or unreasonable. Under these
circumstances, we likewise conclude that the imposition of a
fifty-five percent discount on access charges was also unlawful
or unreasonable. Attorney General, supra.

E

Finally, Ameritech contends that this Court must reverse the
circuit court’s order of mandamus. We review the grant of a writ
of mandamus for an abuse of discretion. Rhode v Michigan Dep’t
Of Corrections, 227 Mich App 174, 178; ___ NW2d ___ (1997).
However, the central issue involved in this appeal involved
statutory interpretation, which is a question of law that we
review de novo. Id. Having determined that Ameritech was
not, and is not, required to comply with the PSC’s unlawful or
unreasonable 1996 orders, we also reverse the circuit court’s
order issuing a writ of mandamus. Id. at slip op p 7.